A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

ANNOUNCEMENT: Join us Wednesday, November 16 at 12 noon (ET) for a free webinar: The Veterinary Feed Directive Rules and How They Will Affect You. Details and sign-in information here.  

JUDICIAL: Includes pesticide, fiduciary duty, standing, and GMO issues.

In Arias v. DynCorp, No. 1:01CV01908 (ESH), 2016 WL 6496214, (D.D.C. Nov. 2, 2016), plaintiffs (two thousand Ecuadorian citizens), claim airplanes sprayed them with glyphosate during an anti-drug fumigation campaign conducted by defendant. (The U.S. and Colombia have cooperated in a program known as “Plan Colombia,” wherein the Department of State hired defendant to destroy Colombian cocaine and heroin poppy plantations “by using airplanes to spray aerial fumigants over Colombian drug farms.”) Plaintiffs contend the planes also released a “fumigant that is harmful to humans, animals, and plants other than cocaine and opium poppies” onto their lands in Ecuador. Defendant moved for summary judgment, but the court believed evidence supported contention that defendant “understood the troubling consequences of its spray operations in Ecuador.” The court concluded that, “There is thus a material factual dispute as to whether defendants and their pilots were ‘substantially certain’ that herbicide was routinely contacting individuals on the ground in Ecuador.” Summary judgment for defendant denied in part.

In RIGBY et al. v. FLUE-CURED TOBACCO COOPERATIVE STABILIZATION CORPORATION, No. A16A0984, 2016 WL 6539121, (Ga. Ct. App. Nov. 3, 2016), plaintiffs (tobacco farmers) were members of defendant’s non-profit cooperative and appealed a ruling for defendant on a breach of fiduciary duty claim. The court reasoned that, “Under North Carolina law, to establish a claim for breach of fiduciary duty, ‘there must first be a fiduciary relationship between the parties.’” Plaintiffs argued a fiduciary relationship arose because they “held a ‘special confidence’ in the Cooperative as their sole outlet for selling their tobacco crops for years.” The court ruled that the evidence “does not show that [plaintiffs] have reposed any “special confidence” in the Cooperative that would rise to the level necessary to impose fiduciary duties on the Cooperative.” Ruling for defendant affirmed.

In CAUDILL SEED & WAREHOUSE CO., INC., Plaintiff, v. MARK D. ROSE, Defendant. MMR FARMS LLC, Interested Party., No. 415CV00004TWPTAB, 2016 WL 6542698, (S.D. Ind. Nov. 4, 2016), plaintiff wanted land defendant fraudulently conveyed to third party to satisfy a post-bankruptcy judgment against defendant. Judge granted plaintiff’s motion to avoid fraudulent conveyances and defendant appealed claiming plaintiff lacked standing. Lower court concluded plaintiff had standing because “it initiated its proceedings supplemental to seek enforcement of a post-bankruptcy judgment, rather than a pre-bankruptcy judgment,” and appellate court affirmed.

In Schneider v. Chipotle Mexican Grill, Inc., No. 16-CV-02200-HSG, 2016 WL 6563348, (N.D. Cal. Nov. 4, 2016), plaintiffs alleged defendant’s “non-GMO” and “GMO free” representations “are likely to deceive a reasonable consumer with definitions used by the Non-GMO Project and the federal government.” Defendant’s moved to dismiss plaintiffs’ misrepresentation claim and a host of other allegations. Court ruled that defendant’s “Non-GMO Claims were affirmative misrepresentations sufficient to support Plaintiffs’ misrepresentation claim.”  Further, the court found that plaintiffs showed the “plausibility of their interpretation of Defendant’s Non-GMO Claims by proffering definitions used by the Non-GMO Project and the federal government, as well as market research and consumer surveys.” Defendant’s motion to dismiss plaintiffs’ misrepresentation claim denied.

REGULATORY: Includes FWS, FS, NOAA and RBCS rules and notices.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on the following applications to conduct certain activities with endangered species. Info here.

FOREST SERVICE: Notice the Ozark-Ouachita Resource Advisory Committee will meet in Fort Smith, Arkansas. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Department of Commerce determines that none of their mandatory respondents qualify for a separate rate and are, therefore, considered part of the Vietnam-Wide Entity for their exports of subject merchandise to the United States during the period of review February 1, 2015, through January 31, 2016. Info here.

Notice U.S. Department of Commerce determined that ammonium sulfate from China is, or is likely to be, sold in the United States at less than fair value. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule changing the southern and eastern boundaries of the Southern Gear Restricted Area. This rule is intended to increase access to traditional squid fishing areas, while maintaining protection for juvenile scup. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice announcing public comment for proposed rule changes for the Rural Business Investment Program. Details here.